Cakes Baked at Gunpoint

I don’t often do unabashedly political blog posts. If you’re looking for the latest in my “indefatigable” posts about the Atlanta startup community… come back next time.

In the last few weeks, I’ve been pulled into multiple conversations about same-sex marriage… or, to be accurate, what should be the consequences of holding an opinion on same-sex marriage. In particular, I’ve had disagreements with friends over the “gay wedding cake” cases (Iowa and Oregon and Colorado), House Bill 1023 in Georgia, and now the ouster of Brendan Eich as CEO of Mozilla. And some thoughts don’t fit well into 140-character chunks.

To quote our President, “let me be clear.” I think the root of this problem is the mixing of two spheres that should not overlap — the realm of religion and the realm of the law. If I were Tsar, I’d declare that the government didn’t recognize any marriages, just civil unions… and you could have a civil union with any other consenting adult, or adults, that wanted to have one with you. Fill out the form at the courthouse, sign here, and here. Thanks, and mazel tov!

(Building a life together is hard enough. We shouldn’t limit individual choices as to who they want to do it with.)

At the same time, Tsar Stephen would declare that religions, collectively, owned the word “marriage” and you could get married to whomever your church approves… which might be a never-divorced heterosexual of the same race and opposite sex for certain churches, or might be any competent adult(s) for other churches. Whatever makes you happy. It’s none of the government’s business.

(Yes, my position opens the door to polygamy. That’s actually inevitable, and I’m not worried about it. Relationships are an N2-N problem, so a three-way polygamous relationship is three times as difficult as a two-person partnership, and a four-way is twice as hard as that, and bigger numbers pretty much translate to “improbable at best.” Most people will stick with one mate. I’m not bothered by the outliers.)

So the civil rights of gay couples would completely protect their employment, their political power, their rights to visit loved ones in the hospital, their rights to inherit and adopt, their rights to shop and to travel… all those things would covered by government-sanctioned civil unions.

Their civil rights would not extend to requiring anyone else to recognize, support, nor participate in their marriage. If you try to buy a birthday cake from someone and they refuse because you’re gay, you’d have recourse to the courts. If you try to buy a wedding cake, or to have someone host your wedding, or to take your wedding photographs, and they refuse because their religion rejects gay marriage—well, you’d be within your rights to do anything from a nasty review on Yelp to forming a picket line out front until you get bored. But you couldn’t sue them.

A Little History

To further quote our President, “make no mistake.” I disagree with the bakers’ position. I think they’re wrong. And on the wrong side of history.

But not everything wrong should be illegal.

And not everything right should be mandatory.

That road leads inevitably from “1984” to the New Soviet Man, and the Killing Fields of Cambodia, and the ovens of Auschwitz. And that’s a road which America consciously avoided until Woodrow Wilson yanked the steering wheel to the left… but we never seemed really committed to it until just recently.

Remember the “civil unions” debate in the 1990s? It wasn’t that long ago.

The Religious Freedom Restoration Act of 1993 was one of the most bi-partisan bills in history. It was introduced by Chuck Schumer (D-NY), passed the Senate 97-3, passed the House without opposition, and was signed by Bill Clinton (D-Hope). It remains the law of the land today.

Three years later, in 1996, Bill Clinton signed the Defense of Marriage Act (DOMA), which specifically upheld states’ rights to ban same-sex marriages. In that same year, a national Harris Poll indicated a 5-1 opposition in the U.S. to same-sex marriage. And throughout the 1990s, the word was “We just want civil unions. No one is talking about same-sex marriage.” Howard Dean was the first governor to sign a bill allowing civil unions (not same-sex marriages) in 2000, which was correctly hailed as a milestone for gay rights.

Suddenly, in 2004, over the opposition of their state legislature, the Massachusetts Supreme Judicial Court allowed gay couples to marry, which galvanized nationwide opposition. Multiple states exercised their DOMA rights and passed laws banning same-sex marriages. State Supreme Courts upheld them. Opponents of same-sex marriage almost certainly swung the 2004 election in Bush’s favor by carrying Ohio. When California’s Supreme Court followed Massachusetts’ lead in 2008, California voters fought back in opposition to same-sex marriage, passing Proposition 8 by a 52% margin that November. (One of those voters, and donors, was Brendan Eich, whose contribution to a Pro-Prop 8 group led to his dismissal this week.) Back in 2008, both Barack Obama and Hillary Clinton publicly opposed same-sex marriage.

But the cracks in the dikes were growing. Courts and legislatures in four more states embraced same-sex marriage in early 2009, with more following, culminating in voters supporting it for the first time in four elections just six months ago (in Washington, Maryland, Maine, and Minnesota). One way or another, same-sex marriage is currently the law in 17 states plus D.C., with more to come.

The supporters of same-sex marriage are winning. The outcome is not in doubt. Demographics are destiny, and as younger voters begin to dominate elections, same-sex marriage will eventually be accepted in every state.

So I find myself in the surprising position of agreeing with Andrew Sullivan here and here that this is “unbelievably stupid for the gay rights movement.”

Change is happening at lightning speed.

Read the following quote:

I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races. I am not nor ever have been in favor of making voters or jurors of Negroes, nor qualifying them to hold office, nor to intermarry with white people. And I will say in addition to this that there is a physical difference between the white and black races which I believe will ever forbid the two races living together on terms of social and political equality.

What image forms in your mind? A Grand Wizard of the KKK? A snake-handling Pentecostal preacher in Mississippi? An Afrikaner white supremacist?

“We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. … I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. … I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

We haven’t solved the issue of racism in this country, and we probably won’t in my lifetime, nor my daughter’s lifetime, and possibly never. But look how far we have come! It took three generations of war and prayer and argument and court decisions and and marching and legislation to get from Abraham Lincoln to Martin Luther King, Jr. Even then, it took another generation to get a black President in the White House. The change has been remarkable, but it took time.

By comparison, the wheels of same-sex marriage have spun so fast that millions of people just cannot keep up. It has only been a decade, people! African-Americans waited three hundred years, under treatment far more vile than having to shop around for a wedding cake. Can’t you wait a just little longer? Are you such spoiled brats that you insist on 300 million people achieving enlightenment by next Tuesday? In the words of Conor Friedersdorf, “nothing about access to wedding-industry goods and services is even remotely comparable to the reality that justified civil-rights-era coercion.” What’s the rush?

The supporters of same-sex marriage are winning. Indeed, they have already won, if they don’t snatch defeat from the jaws of victory.

One way to achieve defeat—at least for another generation—is to be seen as bullies. As intolerant. As insisting on the primacy of their position, even when it interferes with the sincerely-held religious beliefs of millions of Americans. To display what the openly-gay Andrew Sullivan calls “the obvious and ugly intolerance of parts of the gay movement, who have reacted to years of being subjected to social obloquy by returning the favor.”

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” —Oliver Wendell Holmes, Jr.

Let the intolerant be intolerant. Feel free to shame them, to boycott them, to picket their stores. Just like Martin Luther King, Jr., or Gandhi… your victory is inevitable.

But, as Doug Mataconis wrote, “One does have to wonder just how much of a victory dance those of us on the winning side need to do.”

Or, from Dave Winer: “The Internet is very powerful, we’re learning. I think we just crossed a line that we should have avoided.”

Cakes and the Law

Back to the “gay wedding cake” controversy which started so much of the current cycle of controversy:

The various plaintiffs across the country felt insulted or discriminated against by the bake shops’ refusal to sell them a wedding cake. (Note that the owners had sold cakes to gays in the past, including to the complaining couple in Oregon. It was only when told that it was, specifically, a wedding cake that they balked.) By my standards, their civil rights were not violated, since there are plenty of other places to buy a wedding cake. Only their feelings were hurt. I wish that were not the case. But it is impossible to create and enforce a right to not be offended.

The insults were real. But filing a lawsuit is a decision, and that decision is a choice.

Remember, calling on the power of government is calling on the threat of force. (We grant our governments a monopoly on force. If you violate a law, you will be fined. If you don’t pay the fine, you will be jailed. If you try to escape from jail, you will be shot. All government power to coerce is, ultimately, backed up by the threat of force.)

A wedding day is supposed to be a celebration of joy, of optimism, and of love. In at least one case, the gay couple targeted a bakeshop knowing the owner would not bake a cake for their wedding. They wanted to file a lawsuit. So the plaintiffs were intentionally inviting intolerance and hate and the threat of force into their wedding day. How can that possibly be a good idea?

Perhaps it would have been better to buy the cake from the shop down the street, and to support those vendors who in turn support you. The only alternative is to have your wedding cake baked at gunpoint. I can’t imagine that would taste very good.